In re Antonioli's Estate
| Decision Date | 21 November 1910 |
| Citation | 111 P. 1033,42 Mont. 219 |
| Parties | In re ANTONIOLI'S ESTATE. v. SIMON. GORMALLY |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Petitions by Nat Simon and by P. T. GorMally for the issuance of letters of administration of the estate of Peter Antonioli deceased. From an order granting the petition of Nat Simon and denying the petition of P. T. Gormally, and from an order denying a motion for a new trial, P. T. Gormally appeals. Dismissed.
Canning & Keating, for appellant.
B. K Wheeler, for respondent.
On November 1, 1909, upon petition by herself, the district court of Silver Bow county made an order appointing Kate Antonioli administratrix of the estate of her husband, Peter Antonioli, deceased. On December 22, 1909, the respondent, Nat Simon, presented to the court his petition for the removal of Kate Antonioli from her office, on the ground that since her appointment she had become ill and of unsound mind to such an extent that she was wholly incompetent to administer the affairs of the estate, and asking that he be appointed in her stead. This petition was accompanied by a written request signed by six of the daughters of the deceased, all sui juris, that it be granted. Before the hearing thereon, and on January 10, 1910, P. T. Gormally, the appellant, presented his petition asking that he be appointed. This petition was accompanied by a written request by Kate Antonioli that she be allowed to resign and that Gormally be appointed in her stead. The court first accepted the resignation of Kate Antonioli. Thereupon the petitions were heard together, as required by section 7441, Rev. Codes, with the result that on January 31, 1910, the court made an order granting the Simon petition and denying that of Gormally. From this order and from the one denying his motion for a new trial, Gormally appealed. No issue was joined as to any fact alleged in either petition, nor was the competency of either applicant drawn in question by written objection.
When the record was filed in this court, the respondent submitted motions asking that the appeals be dismissed, the first on the ground that it had not been taken within 60 days from the date of entry of the order, and the second on the ground that a final order in this character of proceeding, wherein no issues of fact are made by pleadings, cannot be reviewed on motion for new trial, and hence no appeal lies from an order granting or refusing such a motion. The first appeal was dismissed on the ground stated in the motion. Rev. Codes, § 7098; In re Reilly's Estate, 26 Mont. 358, 67 P. 1121. Disposition of the motion to dismiss the second was deferred for argument. Now that counsel have been heard, we have concluded that this appeal must also be dismissed.
While the provisions of the Codes relative to new trials and appeals apply generally to probate proceedings (Rev. Codes, § 7712), controversies which do not arise upon written pleadings authorized or required by statute do not fail within them, because a "new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees" (Rev. Codes, § 6793), and an issue of fact for the purpose of a trial arises upon formal pleadings (Rev. Codes, § 6723). As was pointed out in State ex rel. Heinze v. District Court, 28 Mont. 227, 72 P. 613, the expression "issue of fact" in its broadest sense includes issues raised in any manner, whether upon formal pleadings or not; but as used in section 6793, supra, the expression refers to an issue arising upon formal pleadings only. The general policy of the probate practice act is that all dilatory proceedings in the settlement of estates should be curtailed as far as...
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